Sri Jairam R vs Sri Chandra M S
2022 Latest Caselaw 12878 Kant

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   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 7TH DAY OF NOVEMBER, 2022

                        BEFORE

           THE HON'BLE MS.JUSTICE J.M.KHAZI

           CRIMINAL APPEAL NO. 54 OF 2022

BETWEEN:

SRI JAIRAM R
S/O RACHAPPA
AGED ABOUT 36 YEARS
RESIDING AT NO.19,
2ND CROSS, CHELUVAPPA GARDEN
BHUVANESHWARINAGARA
K P AGRAHARA
BENGALURU - 560 023
                           ...COMPLAINANT/APPELLANT

(BY SRI. SAMARTH PRAKASH, ADVOCATE FOR
    SRI. KUMAR RAM C.M, ADVOCATE)

AND

SRI CHANDRA M S
AGED ABOUT 37 YEARS
S/O LATE SIDDAIAH
PROPRIETOR OF C S R
SECURITY SERVICE
NO.33, 50 FEET ROAD
1ST FLOOR, RAGHAVENDRA BLOCK
BENGALURU - 560 050

ALSO AT
R/AT C/O RAVI
NO.24, 1ST FLOOR
BEHIND THALAGHATTAPURA P S
OPP KALABYRAVESHWARA NILAYA
BENGALURU - 560 062
                           ......ACCUSED/RESPONDENT

(RESPONDENT - SERVED)
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     THIS CRIMINAL APPEAL FILED U/S 378 (4) OF CR.P.C
BY THE ADVOCATE FOR THE APPELLANT PRAYING THAT THIS
HON'BLE COURT MAY BE PLEASED TO a) SET ASIDE THE
ORDER DATED 08.10.2021 IN C.C.NO.53095/2018 PASSED
BY THE XIV ADDL CHIEF METROPOLITAN MAGISTRATE,
MAYOHALL UNIT, BANGALORE AND RESTORE THE COMPLAINT
IN C.C.NO.53095/2018 ON THE FILE OF XIV ADDL CHIEF
METROPOLITAN MAGISTRATE, MAYOHALL UNIT, BANGALORE;
AND SUCH OTHER RELIEFS AS THIS HON'BEL COURT MAY
DEEM FIT TO GRANT IN THE CIRCUMSTANCES OF THE ABOVE
CASE IN THE INTEREST OF JUSTICE AND EQUITY.

      THIS CRIMINAL APPEAL COMING ON FOR ADMISSION
THIS DAY, THE COURT DELIVERED THE FOLLOWING:


                     JUDGMENT

Being aggrieved by dismissal for default of

complaint filed by him for the offence punishable under

Section 138 of N.I.Act, complainant has come up with

this appeal.

2. For the sake of convenience the parties are

referred to by their rank before the trial Court.

3. It is the case of the complainant that he and

accused are friends knowing each others since several

years. During 2016, in order to improve his business

accused borrowed a sum of Rs.6,00,000/- from the

complainant promising to repay the same at the earliest.

On his failure, when complainant demanded repayment,

accused issued two cheques dated 23.09.2016 for

Rs.3,00,000/- each. However, when the said cheques

were presented for encashment they were returned

dishonored on the ground of insufficiency of funds. When

this fact was brought to the notice of the accused, he

pleaded for ten months time.

3.1 It is further case of the complainant that

during June 2017, he demanded accused to repay the

amount. This time accused issued a cheque dated

15.07.2017 for a sum of Rs.6,00,000/-. Once again on

presentation, it was dishonored on 05.09.2017 on the

ground of insufficiency of funds. After issuing notice,

complainant filed complaint in C.C.No.53095/2018.

Based on his sworn statement and documents, the trial

Court took cognizance. In fact accused appeared and

secured bail. After filing application under Section 145(2)

of N.I.Act, when PW-1 was recalled for cross-

examination, accused approached Lok Adalath for

settlement, but the matter could not be settled.

However, thereafter accused remained absent and

therefore NBW came to be issued against him and it was

pending.

3.2 Complainant has further contended that in the

meanwhile due to COVID-19 restrictions, the Courts were

not functioning and as such the case was not taken up

for hearing between 04.10.2020 to 03.08.2021. On

08.10.2021, the case was called. On that day, for non-

appearance of the complainant, the complaint came to be

dismissed. Complainant is having a good case on merit

and prays to allow the appeal providing him opportunity

to prosecute the complaint.

4. Notice of this appeal is duly served on the

respondent. However, he has not chosen to appear

before the Court.

5. As evident from the appeal memo and the

documents placed on record, it is the specific case of the

complainant that having borrowed a sum of

Rs.6,00,000/- from him, when accused issued cheque

towards repayment of it, it was dishonored on the ground

of funds insufficient. It is pertinent to note that at the

first instance accused did not choose to file application to

recall PW-1 for cross-examination. On the other hand,

the matter was taken up before the Lok Adalath for

settlement. Only after several attempts to settle the

matter failed he has chosen to file application to recall

PW-1 for cross-examination. When the said application

was allowed, he has remained absent and as such NBW

came to be issued against him.

6. As evident from the order sheet, thereafter

due to COVID-19 restrictions, the case has not been

taken up for consideration from 04.10.2020 to

03.08.2021. After relaxation of COVID-19 restrictions,

the case was taken up for consideration on 08.10.2021,

for the first time and on that day on the ground of

complainant and his counsel being absent, it is dismissed

for non-prosecution. In fact, the complainant's evidence

was already recorded and the complainant was not

required to do anything further. On account of

abscondance of the accused, the progress of the case

was stalled. For the fault of accused and for no fault of

the complainant, he is being punished by dismissing the

complaint. Taking into consideration these aspects, I am

of the considered opinion that an opportunity be given to

the complainant to prosecute the complaint and

accordingly, I proceed to pass the following:

ORDER

(i) Appeal is allowed. The order dated 08.10.2021

is set aside. Complaint is restored to the file.

(ii) Appellant is directed to appear before the trial

Court on 06.12.2022 without waiting for

notice from it and prosecute the complaint

diligently.

Sd/-

JUDGE RR